ex4_104.htm


     

    Exhibit 4.104

     

    
 

    


    


    


    


    


    November
5, 2009

    


    Mr. John
F. Thero

    Andover,
MA 01810

    USA

    


    Dear
John,

    


    On behalf
of Amarin, I am delighted to welcome you to the senior management team of Amarin
Pharma, Inc.

    


    For the
purposes of this letter “API” shall mean Amarin Pharma, Inc.  and
“Amco” shall mean Amarin Corporation plc.  “Affiliates” shall mean any
corporation or other business entity which is part of the same enterprise
grouping as API and which is controlled by, is under common control with, or
controls API, where control includes the ability to vote at least a majority of
the voting shares of an entity.

    


    1.           Role/Title

    


    In
addition to your role as a member of the senior management team of API, you
acknowledge and agree that you may be required, without additional compensation,
to perform services for any Affiliate and to accept any reasonable office or
position with any such Affiliate as the Board may require, including, but not
limited to, service as an officer or director of any such Affiliate; and with
effect from November 5, 2009, you agree to perform the role of Chief Financial
Officer of Amco.  As Chief Financial Officer of Amco, you shall
perform such duties and responsibilities as are customarily performed by the
chief financial officer of a company of the size and nature of Amco, and such
other duties and responsibilities as, from time to time, may be assigned to you
by the Board of Amco.  You will report to the Chief Executive Officer
of Amco.

     

     

    2.           Commencement Date

    


    As
discussed, your employment will be deemed to have commenced on November 2, 2009
(“Commencement Date”).  Your principal place of work will be API’s
offices and/or the offices of its Affiliates; however, you may be required to
travel and work at other locations from time to time when and to the extent such
travel is reasonably necessary to perform your duties
hereunder.  Reasonable costs of such travel and lodging will be
reimbursed in accordance with Paragraph 8.

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    


    3.           Base
Salary

    


    Amarin
shall pay you the sum of US$275,000 gross per annum payable in 24 equal
instalments throughout the calendar year.

    


    4.           Stock
Options

    


    Subject
to approval of the remuneration committee of the board of directors of Amco
(“Remuneration Committee”), you will be granted options to purchase 900,000
ordinary shares in Amco (equivalent to 900,000 American Depositary
Receipts).  The exercise price per share of the options will be the
closing price on NASDAQ on the trading day immediately preceeding the date of
grant. The options will vest and become exercisable in four equal annual
instalments, beginning on the first anniversary of the date of grant and
continuing on each of the following three anniversaries of the date of grant, so
long as your employment continues through such vesting dates.  Subject
to the requirements of applicable laws and regulations, the options will be
priced, approved and granted at the first meeting of the Remuneration Committee
following the Commencement Date.  The provisions of the Amco 2002
Stock Option Plan (as may be amended from time to time) shall apply to any
options granted.

    


    5.           Bonus

    


    You will
be entitled to be considered for a discretionary bonus for each calendar year
during your employment with API, including calendar year 2009 on a prorated
basis, at an annual target of 35% of your base salary.  Any such bonus
shall be payable in the absolute discretion of the Remuneration Committee taking
into account the performance of API and its Affiliates as a whole and your
personal performance. Additionally, in the event that the Remuneration Committee
determines, in its absolute discretion, to make an additional performance stock
option grant to senior management of API or its Affiliates, you will be entitled
to be considered for such a grant.

    


    6.           Health
Insurance

    


    You will
be entitled to such major medical, life insurance and disability insurance
coverage as is, or may during your employment, be provided generally for other
senior executives of API as set forth from time to time in the applicable plan
documents.

    


    7.           Retirement
Plan

    


    You shall
be eligible to participate in any 401(k) plan maintained by API for the benefit
of its employees on terms consistent with other 401(k) plan participants as
specified in the 401(k) plan documents.

    


    8.           Expenses

    


    API shall
reimburse you for all reasonable expenses you incur while carrying out your
duties on behalf of API or its Affiliates provided that you follow the
appropriate reimbursement claims


    
      
         


      

      
        -2-

        
          

        

      

      
         


      

    


    procedure,
including providing reasonable documentation of such expenses.  It is
understood that while lodging costs will be considered reimbursable business
expenses while working from API’s current U.S.-based research and development
headquarters, mileage costs associated with business day travel between your
home and this location will not be deemed a reimbursable business
expense.  It is further understood that if reimbursement for any
business expense is deemed to be taxable to you, API will make adjustment to the
level of such reimbursement to pay you for all applicable taxes on such
reimbursement.

    


    9.           Hours
of work

    


    Your
normal hours of work shall be 40 hours per week, although API expects you to
work such hours and at such times as may be reasonably necessary in order for
you to carry out your duties effectively. There is no entitlement to payment for
overtime.  During working hours you shall devote your attention and
skill to the business and interests of API and its Affiliates in a proper and
efficient manner, and shall use your best efforts to further and promote the
business of such companies and to act loyally and to the best of your
ability.

    


    10.           Holidays

    


    You are
entitled to paid holidays of 15 business days
per annum, excluding U.S. Federal holidays.  The holiday year is from
1 January to 31 December and unused holiday entitlement to a maximum of five
days may be carried forward to the subsequent year.  Holidays must be
taken at times convenient to API and sufficient notice of intention to take
holiday must be given to accommodate the needs of the business.

    


    11.           Confidential
Information and Company Documents

    


    You shall
neither during your engagement with API (except in the proper performance of
your duties) nor for a period of seven (7) years after the termination of your
engagement with API:

    


    
      	
              (a)  

            	
              divulge
      or communicate to any person, company, business entity or other
      organisation;

            


    

    


    
      	
              (b)  

            	
              use
      for your own purposes or for any other purposes other than those of API or
      any Affiliate; or

            


    

    


    
      	
              (c)  

            	
              through
      any failure to exercise due care and diligence, permit or cause any
      unauthorised disclosure of

            


    

    


    any
Confidential Information.  These restrictions shall cease to apply to
(i) any information which shall become available to the public generally
otherwise than through your default; or (ii) any requirement by law or order of
a judicial or regulatory authority that you make a disclosure. In the event you
are requested or ordered under (ii) to make a disclosure, you will use your best
efforts to contact API prior to providing any information so as to permit API to
undertake legal steps to protect its interests.


    
      
         


      

      
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    “Confidential
Information” shall mean any proprietary information of API and its Affiliates,
including, without limitation, information relating to products, processes,
services, businesses, personnel, research, financial strategies and activities,
commercial strategies and activities, formulas, materials, compounds,
substances, programmes, devices, concepts, inventions, patents, designs,
methods, techniques, intellectual property, marketing strategies, data, trade
secrets, know-how, plans, operations, tests, studies, manuals, market reports,
customers, financial status, cash flow projections and the like or any other
matter connected with the business of API or its Affiliates, or any of its
suppliers, partners or customers related to API, its Affiliates or their
businesses.

    


    All
books, notes, memoranda, records, lists of customers  and suppliers
and employees, correspondence, documents, computer and other discs, tapes and
other data storage, date listings, codes, designs, and drawings and other
documents and material whatsoever (whether made or created by you or otherwise)
relating to the business of API or its Affiliates(and copies of the
same):

    


    
      	
              (a)  

            	
              shall
      be and remain the property of API or the relevant Affiliate;
      and

            


    

    


    
      	
              (b)  

            	
              shall
      be handed over by you to API or to the relevant Affiliate on demand and in
      any event on the termination of your employment with
  API.

            


    

    


    12.           Termination
of Employment

    


    
      	
              12.1

            	
              It
      is understood that the employment relationship between you and API is “at
      will,” and this agreement does not alter the “employment at will”
      relationship in any way.  Except as provided below, you shall
      provide to API and shall receive from API one month prior written
      notice of the termination of your employment. If written notice
      is given by API to terminate your employment other than as provided in
      clause 12.2 below, API shall pay to you, subject to clause 17 below
      consistent with its normal payroll practices, your base salary until the
      sooner to occur of  a) 6 months from the effective date of
      termination; or b) until you secure full time
  employment.

            


    

    


    
      	
              12.2

            	
              In
      the event that you are terminated for Cause, API may terminate your
      engagement immediately without notice and without liability for
      compensation or damages.  “Cause” shall mean: (a) gross
      negligence or wilful misconduct in the performance of your duties which
      results in material harm to API or its Affiliates; (b) your conviction of,
      or plea of nolo contendere to, (i) any felony or (ii) any other crime
      involving either moral turpitude or your personal enrichment at the
      expense of API or its Affiliates; (c) your refusal to perform your
      lawful duties
      and responsibilities with API or its Affiliates; or (d) the material
      breach by you of any of the covenants contained in this
      agreement.  Prior to or contemporaneously with any termination
      for Cause, API shall provide you with a written detailed statement of the
      factual basis for the determination that Cause is
  present.

            


    

    



    
      
         


      

      
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    13.           Intellectual
Property Rights

    


    It shall
be part of your contractual duties (whether alone or with any other employee of
API or any Affiliate) at all times to further the interests of API and, without
prejudice to the generality of the foregoing and to the extent as is consistent
with the your role within API;

    


    
      	
              (a)  

            	
              to
      make, discover and conceive inventions, processes, techniques, designs,
      improvements or developments relating to or capable of use or adaptation
      for use in connection with the business of API or any Affiliate (“an
      Invention”);

            


    

    


    
      	
              (b)  

            	
              to
      consider in what manner and by what new methods or devices the products,
      services, processes, equipment or systems of API or any Affiliate with
      which you are concerned or for which you are responsible, might be
      improved (“a Development”);

            


    

    


    
      	
              (c)  

            	
              promptly
      to give to API or any Affiliate full details of any such Invention or
      Development which you may from time to time make or discover in the course
      of your engagement with API; and

            


    

    


    
      	
              (d)  

            	
               to
      further the interests of  API’s or any Affiliate’s undertaking
      with regard thereto

            


    

    


    and API
or any Affiliate shall be entitled to the exclusive ownership of any such
Invention or Development and to the exclusive use thereof.

    


    You shall
immediately give full information to the Chief Executive Officer or the board of
directors of Amco (the “Board”) as to such Invention or Development and the
exact mode of working, producing, using and exploiting the same and shall also
give all such explanations and instructions to the Board as may be necessary or
useful to enable API or any Affiliate to obtain full benefit of them and will,
at the expense of API or any Affiliate, furnish it with all necessary plans,
drawings, formulae and models applicable to the same and shall, at the cost and
expense of API or any Affiliate, execute all documents and do all acts and
things necessary to enable API or any Affiliate (or its or their nominees) to
apply for and obtain protection for such Inventions and Developments throughout
the world and for vesting the ownership of them in API or any Affiliate (or its
or their nominees).

    


    You shall
not knowingly do anything to imperil the validity of any patent or protection
related to the business of API or any Affiliate or any application therefore but
shall at the sole expense
of API or any Affiliate use your best efforts to assist API or any Affiliate,
both in obtaining and in maintaining such patents or other
protection.

    


    You shall
not either during your engagement with API or any time thereafter exploit or
assist others to exploit any Invention or Development which you may from time to
time make or discover in the course of your employment with
API or (unless the same shall have become public knowledge otherwise than by
breach by you of the terms of this agreement) make public or disclose any such
Invention or Development or improvement or give any information in respect of
the same except to API or any Affiliate or as it may direct.


    
      
         


      

      
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    You
hereby irrevocably appoint API or any Affiliate to be your attorney in your name
and on your behalf for
the sole purpose to execute all documents and do all things necessary and
generally to use your name for the purpose of giving API or any Affiliate (or
its or their nominees) the full benefit of the provisions of this clause 13 and
in favour of any third party a certificate in writing signed by any director or
the secretary of API or any Affiliate that any instrument or act which falls
within the authority conferred by this clause which shall be conclusive evidence
that such is the case.  API and its Affiliates agree to indemnify and
hold you harmless against all cost, expense, liability and loss (including
reasonable attorney fees) reasonably incurred or suffered by you in connection
therewith.  This provision shall survive the termination of your
employment relationship.

    


    Copyright
and unregistered design rights in all works created by you in the course of your
employment with API will, in accordance with the Copyright Designs and Patent
Act 1988, vest in API or any Affiliate. Rights in any design registerable
pursuant to the Registered Designs Act 1949, (as amended) (the “Act”) created by
you in the course of your employment with API shall, in accordance with the Act,
vest in API or any Affiliate.  Any copyrightable work prepared in
whole or in part by you during the employment period will be deemed “a work made for hire”
under Section 201(b) of the Copyright Act of 1976, as amended, and API or its
Affiliates will own all of the rights comprised in the copyright
therein.  API and its Affiliates agree to indemnify and hold you
harmless against all cost, expense, liability and loss (including reasonable
attorney fees) reasonably incurred or suffered by you in connection
therewith.  This provision shall survive the termination of your
employment relationship.

    


    14.           Restrictions
during employment

    


    During
the course of your employment with API, you shall not:

    


    
      	
              (a)  

            	
              be
      directly or indirectly employed, engaged, concerned or interested in any
      other business or undertaking; or

            


    

    


    
      	
              (b)  

            	
              engage
      in any activity which the Board of Amco reasonably considers may be, or
      become, harmful to the interests of API or any Affiliate or which might
      reasonably be considered to interfere with the performance of your duties
      under this agreement.

            


    

    


    
      	
               
      

            	
              The
      above provisions shall not apply:

            


    

    


    
      	
              (a)  

            	
              to
      the holding by you (directly or through nominees) of investments listed on
      any recognised stock exchange as long as you do not hold more than 5 % of
      the issued shares or other securities of any class of any one company;
      or

            


    

    


    
      	
              (b)  

            	
              to
      any act undertaken by you with the prior written consent of the Board of
      Amco; or

            


    

    


    
      	
              (c)  

            	
              to
      your service with the prior approval of the Board of Amco from time to
      time  on the boards of,  or holding any other offices
      or positions in, companies or organisations which will not present any
      conflict of interest with API or any Affiliate and provided that such
      activities do not materially detract from the performance of your duties;
      or

            


    


    
      
         


      

      
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              (d)  

            	
              to
      your fulfilling obligations to clients of your consulting business which
      obligations are understood to diminish upon commencement of your
      employment with API; or

            


    

    


    
      	
              (e)  

            	
              to
      any not for profit volunteer activities, or participation in professional
      associations, or continuing education in the health care and related
      areas, which do not unreasonably interfere with the performance of your
      duties.

            


    

    


    15.           General
Indemnification

    


    If you
are made a party, or are threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that you are an officer or employee of API or provided services to
an Affiliate, you shall be indemnified and held harmless by API and the
Affiliate to the fullest extent permitted or authorized by applicable law and
its organizational documents, against all cost, expense, liability and loss
reasonably incurred or suffered by you in connection therewith.  You
shall be covered under Amco’s (or its Affiliate’s) directors’ and officers’
liability insurance policy to the extent Amco (or its Affiliates) provide such
coverage for other similarly situated executives. This provision shall survive
the termination of your employment relationship.

    


    16.           Share
Dealings

    


    You shall
comply fully with Amco’s Share Dealing Code.

    


    17.           Section
409A

    


    It is
intended that this agreement will comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and any regulations and guidelines
promulgated there under (collectively, “Section 409A”), to the extent the
agreement is subject thereto, and the agreement shall be interpreted on a basis
consistent with such intent.  However, API shall not have any
obligation to indemnify or otherwise protect you from the obligation to pay any
taxes, interest or penalties pursuant to Section
409A.  Notwithstanding any provision to the contrary in this
agreement, if you are deemed on the date of your “separation from service”
(within the meaning of Treas. Reg. Section 1.409A-1(h)) with API to be a
“specified employee” (within the meaning of Treas. Reg.
Section 1.409A-1(i)), then with regard to any payment that is considered
deferred compensation under Section 409A payable on account of a “separation
from service” that is required to be delayed pursuant to Section 409A(a)(2)(B)
of the Code (after taking into account any applicable exceptions to such
requirement), such payment shall be made on the date that is the earlier of (i)
the expiration of the six (6)-month period measured from the date of your
“separation from service,” or (ii) the date of your death (the “Delay
Period”).  Upon the expiration of the Delay Period, all payments
delayed pursuant to this Clause 17 (whether they would have otherwise been
payable in a single sum or in instalments in the absence of such delay) shall be
paid to you in a lump sum and any remaining payments due under this agreement
shall be paid in accordance with the normal payment dates specified for them
herein.  Notwithstanding any provision of this agreement to the
contrary, for purposes of any provision of this agreement providing for the
payment of any amounts or benefits upon or following a termination of
employment, references


    
      
         


      

      
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    to your
“termination of employment” (and corollary terms) with API shall be construed to
refer to your “separation from service” (within the meaning of Treas. Reg.
Section 1.409A-1(h)) with API.  Whenever a payment under this
agreement specifies a payment period with reference to a number of days (e.g.,
“payment shall be made within thirty (30) days after termination of
employment”), the actual date of payment within the specified period shall be
within the sole discretion of API and its Affiliates.  Whenever
payments under this agreement are to be made in instalments, each such
instalment shall be deemed to be a separate payment for purposes of Section
409A. Anything in this agreement to the contrary notwithstanding, any tax
gross-up payment (within the meaning of Treas. Reg. Section 1.409A-3(i)(1)(v))
provided for herein shall be made to you no later than the end of your taxable
year next following the taxable year in which you remit the related taxes. With
respect to any reimbursement or in-kind benefit arrangements of API that
constitute deferred compensation for purposes of Section 409A, except as
otherwise permitted by Section 409A, the following conditions shall be
applicable: (i) the amount eligible for reimbursement, or in-kind benefits
provided, under any such arrangement in one calendar year may not affect the
amount eligible for reimbursement, or in-kind benefits to be provided, under
such arrangement in any other calendar year (except that the health and dental
plans may impose a limit on the amount that may be reimbursed or paid), (ii) any
reimbursement must be made on or before the last day of the calendar year
following the calendar year in which the expense was incurred, and (iii) the
right to reimbursement or in-kind benefits is not subject to liquidation or
exchange for another benefit.

    


    
      	
              18.

            	
              No
      Conflict

            


    

    


    You
represent and warrant to API that your employment with API does not and will not
conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which you are a party.

    


    
      	
              19.

            	
              Conditions
      of offer

            


    

    


    This
offer of employment is conditional upon:

    


    (a)           satisfactory
completion of references;

    


    (b)           receipt
of original professional and educational qualifications (where requested);
and

    


    (c)           all
pre-employment checks being acceptable to API.

    


    
      	
              20.

            	
              Entire
      Agreement

            


    

    


    This
agreement constitutes the entire agreement between you and API and supersedes
any prior understandings, agreements or representations made by you or API,
whether written or oral, that may have related in any way to the subject matter
hereof. Except for the obligations specifically set forth herein, API does not
owe any obligations to you and you do not owe any obligations to API with
respect to the matters set forth herein.  This agreement may only be
amended by written agreement signed by you and a duly authorised officer of
API.  A waiver by API or you of a breach of any provision of this
agreement by the other party shall not operate or be construed
as


    
      
         


      

      
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    a waiver
of any similar or dissimilar provision at the same or any prior or subsequent
time.  Any waiver must be in writing and signed by you or by a duly
authorised officer of API, as the case may be.

    


    
      	
              21.

            	
              Severability

            


    

    


    If any
provision of this agreement shall be declared to be invalid or unenforceable, in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and
effect.

    


    
      	
              22.

            	
              Governing
      Law

            


    

    


    This
agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the principles of conflict of laws
thereof.  The parties hereto agree to submit to the exclusive
jurisdiction of the state and federal courts in the Borough of Manhattan in New
York, New York in any dispute or proceeding arising out of this
agreement.

    


    If you
choose to accept the offer on the above terms and conditions, please sign and
return the copy of this agreement to Declan Doogan.

    


    We look
forward to you joining our company and I am sure you will have a successful and
challenging career with Amarin.

    


    



    
      
         


      

      
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    Signed
for and on behalf of:

    


    AMARIN
PHARMA, Inc.

     

    


     

    /s/
Dr. Declan Doogan      

    Name: 
Dr. Declan Doogan   Interim CEO

    


    


    


    I
hereby accept and agree to be bound by the terms and conditions of the agreement
set out above.

    


    Signed:  /s/
John F. Thero      

    Name   John F.
Thero

    


     

     

     

     

     

     

     

     

     

     

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